STATE OF NEW JERSEY IN THE INTEREST OF M.B.

 

NOT FOR PUBLICATION WITHOUT THE

APPROVAL OF THE APPELLATE DIVISION

SUPERIOR COURT OF NEW JERSEY

APPELLATE DIVISION

DOCKET NO. A-1883-04T41883-04T4

STATE OF NEW JERSEY

IN THE INTEREST OF

M.B.

___________________________________________________________

 

Submitted October 26, 2005 - Decided

Before Judges Wecker and Graves.

On appeal from the Superior Court of New Jersey,

Chancery Division, Family Part, Middlesex County,

FJ-12-1406-04.

Yvonne Smith Segars, Public Defender, Law

Guardian, attorney for appellant (Abby P. Schwartz,

Assistant Deputy Public Defender, of counsel

and on the brief).

Bruce J. Kaplan, Middlesex County Prosecutor,

attorney for respondent (Simon Louis Rosenbach,

Assistant Prosecutor, of counsel and on the brief).

PER CURIAM

M.B., who was born on January 9, 1989, was tried as a juvenile and adjudicated delinquent for having committed acts which, if committed by an adult, would constitute the offenses of resisting arrest, N.J.S.A. 2C:29-2a; aggravated assault, N.J.S.A. 2C:12-1b(5)(a); possession of marijuana under fifty grams, N.J.S.A. 2C:35-10a(4); and obstruction of justice, N.J.S.A. 2C:29-1. On April 21, 2004, the trial court denied a motion for a new trial, and M.B. was placed on probation for eighteen months. All mandatory fines and penalties were also imposed.

On this appeal, M.B. argues that "the verdict was against the weight of the evidence," and that the trial court erred in denying M.B.'s motion for a new trial. We have considered this argument in light of the record and the applicable legal principles, and we are convinced that there was sufficient credible evidence to support the resisting arrest, aggravated assault, and obstruction of justice adjudications, but we reverse the adjudication of delinquency and the penalties imposed for the possession of marijuana charge.

At the outset, we note that the trial court had an opportunity to see and hear the witnesses and to evaluate their credibility. Our review of the trial court's fact-finding function is limited. "Appellate courts should defer to trial courts' credibility findings that are often influenced by matters such as observations of the character and demeanor of witnesses and common human experience that are not transmitted by the record." State v. Locurto, 157 N.J. 463, 474 (1999) (citations omitted). Unlike factual findings, however, we owe no deference to a trial court's legal conclusions, but review them independently. Manalapan Realty, L.P. v. Twp. Comm. of Manalapan, 140 N.J. 366, 378 (1995).

In this case, the arresting officer, William Draina, testified that he told M.B. to stay in the car while the officer attempted to handcuff the adult driver. According to Draina, M.B. refused to remain in the vehicle, and he "pulled, tugged and pushed" while Officer Draina was trying to take the driver into custody. Draina also testified as follows:

When I was cuffing [M.B.] the driver was able to get himself up and started to kick me about the ribs and chest while standing, I was able to pull his legs out from under him and get him back onto the ground. When I did that the defendant [M.B.] decided to get up and attempt to flee again still in handcuffs and he was eventually brought back over to the driver and placed on top of the driver so I could hold both down at one time.

M.B. testified differently, but Draina's testimony was corroborated to some extent by Officer Mark Zeno, who observed Draina struggling with the two suspects when he arrived on the scene.

Except for the possession of marijuana charge, our review of the record convinces us that the findings by the trial court "could reasonably have been reached on sufficient credible evidence present in the record." See State v. Locurto, supra, 157 N.J. at 472; State v. Johnson, 42 N.J. 146, 162 (1964). Although the trial judge stated his belief that everyone in the car had been smoking marijuana because of the erratic driving and erratic behavior, the record does not support that finding. Furthermore, the circumstances do not allow for an inference of constructive possession because there was no evidence, direct or circumstantial, that M.B. knew that marijuana was in the glove compartment of the car. The juvenile's mere presence, in the back seat of a car that he did not own and could not drive, does not establish constructive possession. See State v. Brown, 80 N.J. 587, 593 (1979) (defendant's presence at the location where drugs are discovered, by itself, is insufficient to prove knowledge and control of drugs).

As a result of the adjudication of delinquency for possession of marijuana, the court was required to impose a mandatory fine under N.J.S.A. 2C:35-15 and a mandatory postponement of driving privileges under N.J.S.A. 2C:35-16. In light of our decision reversing the adjudication of delinquency for possession of marijuana, M.B.'s disposition must be amended accordingly.

 
Affirmed in part, reversed in part, and remanded for amendment of the final disposition.

(continued)

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4

A-1883-04T4

RECORD IMPOUNDED

November 23, 2005